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Tuesday, March 20, 2018

Evidence on Polarization in IP

Posted by
Michael Risch

Since my coblogger Lisa Ouellette has not tooted her own horn about this, I thought I would do so for her. She, Maggie Wittlin (Nebraska), and Greg Mandel (Temple, its Dean, no less) have a new article forthcoming in UC Davis L. Rev. called What Causes Polarization on IP Policy? A draft is on SSRN, and the abstract is here:

Polarization on contentious policy issues is a problem of national concern for both hot-button cultural issues such as climate change and gun control and for issues of interest to more specialized constituencies. Cultural debates have become so contentious that in many cases people are unable to agree even on the underlying facts needed to resolve these issues. Here, we tackle this problem in the context of intellectual property law. Despite an explosion in the quantity and quality of empirical evidence about the intellectual property system, IP policy debates have become increasingly polarized. This disagreement about existing evidence concerning the effects of the IP system hinders democratic deliberation and stymies progress.

Based on a survey of U.S. IP practitioners, this Article investigates the source of polarization on IP issues, with the goal of understanding how to better enable evidence-based IP policymaking. We hypothesized that, contrary to intuition, more evidence on the effects of IP law would not resolve IP disputes but would instead exacerbate them. Specifically, IP polarization might stem from "cultural cognition," a form of motivated reasoning in which people form factual beliefs that conform to their cultural predispositions and interpret new evidence in light of those beliefs. The cultural cognition framework has helped explain polarization over other issues of national concern, but it has never been tested in a private-law context.

Our survey results provide support for the influence of cultural cognition, as respondents with a relatively hierarchical worldview are more likely to believe strong patent protection is necessary to spur innovation. Additionally, having a hierarchical worldview and also viewing patent rights as property rights may be a better predictor of patent strength preferences than either alone. Taken together, our findings suggest that individuals' cultural preferences affect how they understand new information about the IP system. We discuss the implications of these results for fostering evidence-based IP policymaking, as well as for addressing polarization more broadly. For example, we suggest that empirical legal studies borrow from medical research by initiating a practice of advance registration of new projects-in which the planned methodology is publicly disclosed before data are gathered-to promote broader acceptance of the results.

This work follows Lisa's earlier essay on Cultural Cognition in IP. I think this is a fascinating and interesting area, and it is certainly seems to be more salient as stakes have increased. I am not without my own priors, but I do take pride in having my work cited by both sides of the debate.

The abstract doesn't do justice to the results - the paper is worth a read, with some interesting graphs as well. One of the more interesting findings is that political party has almost no correlation with views on copyright, but relatively strong correlation with views on patenting. This latter result makes me an odd duck, as I lean more (way, in some cases) liberal but have also leaned more pro-patent than many of my colleagues. I think there are reasons for that, but we don't need to debate them here.

In any event, there is a lot of work in this paper that the authors tie to cultural cognition - that is, motivated reasoning based on priors. I don't have an opinion on the measures they use to define it, but they seem reasonable enough and they follow a growing literature in this area. I think anyone interested in current IP debates (or cranky about them) could learn a few things from this study.